Toomas Paaver. What Lessons Can Be Learned From the Sakala Saga?

I do not wish to write anything about the architecture of the demolished Sakala Centre, or about the new one under construction. In the case of the development saga of Sakala Centre, the process that took place is mainly what merits review. It goes without saying that we should no longer bemoan the loss of the Sakala Centre. Yet we should still think about what can be learned from this entire process in the long term.

This was essentially an aspiration to a well-functioning partnership between the public and private sectors (the common abbreviation for this kind of development process is PPP). The objective was to add an addition to the old valuable centre, where the total effect of the old and the new, overall, would enrich the centre of Tallinn with a new contemporary cultural edifice.

In itself, the chronicle of development began nicely and promisingly. Unlike many other situations, a detailed master plan existed prior to the transactions that organised the future of the area. On the part of the government, the process began with the quite logical decision to give the private firm acting as developer a ground lease at a financially advantageous rate, while in doing so setting the condition of preserving the existing building, which limited commercial freedom. Furthermore, an addition was to be built, and its building plan was to be determined through an architectural competition, which would also have ensured a sufficiently presentable architectural solution. The ground lease contract and the current detailed master plan were supposed to ensure the fulfilment of these conditions.

The contract was signed, the competition took place, and a balanced, presentable solution was found. If, from this point onward, the municipal and national governments had defended the result of the competition as the solution approved by all parties, then we would perhaps finally have had a quality example of cooperation between the public and private sectors. The subsequent process, however, went completely in the opposite direction. In short, it turned out to be a totally brutal and extreme case of private interests running over public interests, as well as common values and natural decision-making processes. The existing cultural centre was in good shape. It was demolished and the cultural centre logic in the plans for the new building turned into a business centre logic.

Why did it turn out this way? The original reason for this kind of result is, of course, not difficult to guess – the developer lacked the actual desire to continue following the chosen path. Yet it is in just this kind of crisis situation, with opposite wishes, that the will of the public sector and the meaning of the documents forming the basis for development become decisive.

Strange things started to happen. An expert analysis compiled by a lawyer’s office appeared from out of nowhere claiming that the detailed master plan could not regulate demolition at all, which municipal representatives, in turn, automatically accepted. The Minister of Culture, representing the national government, declared the required architectural competition prescribed by the contract to be contract lyricism that was of no importance. A demolition permit appeared from the depths of the bureaucracy against the background of these interpretations. As a reaction to the public outcry that followed, however, we saw a comical ‘game of hot potato’ with demolition permit nullification proposals by the Minister of Culture, the municipal government, and the county governor. This demonstrated anything but the will of all these institutions to continue cooperation between the public and private sectors according to preceding agreements.
I have, on many occasions, defended my positions with the contention that balanced urban space comes about only when public interests and public space are just as important to the representatives of the public sector as money is to private owners. As soon as the public sector starts representing private interests in decisions concerning construction, the system is thrown out of balance regardless of how strict the rules in effect may be. No architect can create a properly balanced architectural solution if he has to fight alone simultaneously against both public authorities and private customers. As soon as the public sector starts backing up private interests, natural relationships in society get out of hand, and poor, unbalanced urban space becomes inevitable. Is there hope that cooperation between the public and private sectors in Estonia will start bearing fruit in the future?

The public sector should fulfil its role even when all those involved in the process happen to be from the same party. But it is hardly likely that we as architects could eliminate corrupt associations between developers and organs of power, party members and investors. Thus I will not even start to analyse the reasons connected with the sphere of corruption here. We can, however, definitely make pertinent recommendations for the development of legislation in our field in the direction that would make it as difficult as possible to twist the wrong choice of role by the public sector, and the detrimental decisions arising from this choice, in order to make them legally correct. To make it so difficult that people in power would be embarrassed to do so.

Three different themes merit separate dissection in the Sakala saga – first, the connection between the construction documents and drawings and the detailed master plan; second, the connection between urban space and property law contracts; and third, the authorisations of the decision-makers. I will focus primarily on the first theme, because it encompasses the entire environment subject to construction perhaps most broadly. At the end, I will touch on the second and third themes.

The Connection Between the Construction Documents and Drawings and the Detailed Master Plan
How should the compatibility between the construction documents and drawings and the detailed master plan be assessed on the whole? How did it prove to be possible at all that the Sakala Centre was demolished on the basis of the expert analysis of a lawyer’s office? Why is it that, when architects compile both the detailed master plan and the construction documents and drawings, a lawyer interprets the connection between them? And is it not so that, in a way, we ourselves as architects foster this kind of thinking?

Our detailed master plans and processes of assessing correspondence to those plans are mostly built up on one concrete basic principle: the correspondence or lack of correspondence of a set of construction documents and drawings to the detailed master plan should be absolutely clear to everybody. The detailed master plan is a clear set of rules, within the limits of which freedom exists. The laconic provision of the building code that states that a building permit is not granted if it is not in accordance with the detailed master plan reflects the same principle in the legal system. This kind of wording also means that if the construction documents and drawings correspond to the detailed master plan, then the relevant building permit cannot be denied. The law of spatial planning is somewhat more flexible in its wording concerning the same point, stating that the detailed master plan is the basis for designing buildings. The law governing administrative procedure also alludes somewhat to possibilities for more thorough consideration of construction documents and drawings. Yet, in practice, the interpretation of the building code is still clearly the most widespread. This suggests that the detailed master plan is like a law where the assessment of its correlation is more a legal than an architectural question. Should this be so?

I have often heard the conviction expressed by architects, bureaucrats and developers that this is just how it should be, and that if correspondence to the detailed master plan is not clearly comprehensible, then the detailed master plan is flawed. But is this really how it should be? I am not about to assess the quality of the detailed master plan for the Sakala Centre but, to a great degree, the demolition of the centre became possible due to the fact that nobody imagined the possible intention of demolition at the time the detailed master plan was drafted. It was not necessary to consider this option at that moment because it was set as a precondition, just like we mostly assume that the ground will stay where it is and the weather will remain as it has been in these parts. Yet, according to a notion that we ourselves have accepted, what is not prohibited is permitted, even if it was not assumed.

The situation is inconsistent and some see a simple solution for avoiding sagas like Sakala, where, for instance, demolition should be expressly declared by law to be an activity regulated by the detailed master plan. Yet if a manufacturer wants to replace a dilapidated warehouse of no architectural value with a new one deep in an industrial area in the suburbs, would the drafting of a detailed master plan for this be reasonable? If such a detailed master plan were to be made public, nobody would be interested in it and the entire time-consuming process would simply be a waste of people’s working time. There are still softer means for differentiating between demolitions. There is such a thing as good administrative practice, and also the principle of investigation described in the law governing administrative procedure, according to which the municipal government ascertains the range of persons whose interests could be affected by this decision before making the decision. It takes their opinions into account prior to making the decision. In the case of Sakala, it was clear even before the demolition permit was issued that the range of persons with interests in the matter was very broad – this would not have been difficult to notice. Thus, the extremely strict regulation of demolition as a basic principle is perhaps not a good direction.

We could also ask if perhaps the story of the demolition of Sakala was an unfortunate exceptional case. I do not think it was, because, working as the city architect, I have, for example, repeatedly come across a typical situation that may seem banal here but nevertheless illustrates the situation well. A number of trees are shown on the drawing of the detailed master plan. The developer asks the city architect if one tree can be moved on the plan and another omitted altogether during the design phase. He has reasonable justifications for this. Some corrections are indeed necessary for several reasons. The plan as a whole improves, and the city architect replies that it is no problem. It would be a nuisance for everyone to go through a new time-consuming and labour-intensive planning procedure for this kind of small detail. But, the next time, the developer appears with a construction drawing site plan, where most trees have disappeared and some have been moved elsewhere to an unsuitable spot, and a parking lot stretches out instead of the planned green area. The justification is simple – the moving of trees was allowed. Needless to say, the content of the detailed master plan and the balance of the urban space are lost. It is difficult to argue against this: nobody has defined the boundary where contradiction of the detailed master plan begins and ends. This boundary cannot be precisely defined while the detailed master plan is being drafted because it depends on wishes and circumstances that come to light later.

The above-mentioned example simply illustrates that there are little, and less important, Sakala sagas everywhere. But, together, these little stories form the living environment that we build. The larger and more complex the object, the more complex the assessment of the connections between the construction documents and drawings and the detailed master plan is. In the case of the Sakala Centre, it could have been argued at what point demolition begins. The removal of one wall of the large auditorium would probably have been acceptable. But two or three walls? Since the whole building was demolished, this kind of discussion did not even occur.

These descriptions perhaps suffice to raise doubts regarding the beautiful dream that the detailed master plan always indicates with unambiguous clarity, whether a set of construction documents and drawings corresponds to it or not. Is this fine basic principle that exists in our heads and is reflected in the legal system perhaps a fixed idea that, overall, actually causes discord?

When I worked as the city architect in Kuressaare, I used a somewhat different model to supervise the drafting of detailed master plans and construction documents and drawings and to interpret the connection between them. The detailed master plan does not prescribe strict limits and rules for construction but, rather, presents a presumable spatial solution. Each detailed master plan included in writing the principle that the construction documents and drawings conform to the detailed master plan if, in comparison with the detailed master plan, they do not undermine the interests of a single individual, the public interest, and the spirit of the detailed master plan as a whole. This also means that assessing the correspondence of each set of construction documents and drawings to the detailed master plan is not simply a formal check, but rather substantial architectural work, and sometimes also a process of cooperation between architects, which I as the city architect naturally had to lead for the most part.

Based on experience, I believe that planning on the basis of this kind of principle (hereinafter Model B) functioned significantly better than the customary model, where the detailed master plan is seen as a set of definitive rules (hereinafter Model A). More thorough and well thought-out detailed master plans contain complicated spatial solutions that are not possible to summarise with simple and unambiguous rules. A good detailed master plan is like a complete work, in which space has been thoroughly worked out in two dimensions at a certain point in time. Sometimes, but not always, the buildings in the area of the plan must be worked out almost at the sketch level in the course of planning, in the interests of quality, but this kind of exact plan should not become a definitive truth etched in stone or a strict law in the planning stage.

In addition to the fact that this kind of planning model is clearer and more comprehensible to the public, it has one more very fine attribute – it creates a system of mutual correction of mistakes between construction documents and drawings and detailed master plans, which helps to avoid the realisation of works of poor quality.
If the detailed master plan remains superficial, or a mistake has been made in the planning, it is possible to correct this in the course of project design. The converse is also true – if only formal rules have formed the basis of the project design, abandoning the content side of a well thought-out detailed master plan, then it is possible to reject such a project. The following table should in general terms characterise the difference between the two ways of approaching planning.

Model A:DETAILED MASTER PLAN AS A SET OF DEFINITIVE RULES

Model B:DETAILED MASTER PLAN AS A PRESUMABLE GENERAL SPATIAL SOLUTION

Quality construction documents and drawings on the basis of a quality detailed master plan.

(+)
Generally speaking, leads to a good result.

(+)
Generally speaking, leads to a good result.

Quality construction documents and drawings on the basis of a poor quality detailed master plan

(-)
Further development of the solution presented by the detailed master plan by way of the construction documents and drawings gets bogged down in formal variance with the detailed master plan.

(+)
It is possible to minimise the deficiencies of the detailed master plan by further developing the solution of the detailed master plan through project design.

Poor quality construction documents and drawings on the basis of a quality detailed master plan

(-)
It is not possible to require the further development of the construction documents and drawings on the basis of the detailed master plan, since formal correspondence with the detailed master plan exists.

(+)
It is possible to require the further development of the construction documents and drawings on the basis of the work previously done on the publicly disclosed detailed master plan.

Poor quality construction documents and drawings on the basis of a poor quality detailed master plan

(-)
Generally speaking, does not lead to a good result.

(-)
Generally speaking, does not lead to a good result.

Although the assessment of quality is always subjective, a conceptual boundary between good quality and poor quality nevertheless exists. For example, attributes such as balance, thoroughness, professionalism, and timeliness exist. Generally speaking, the quality of a project or detailed master plan can be assessed on the basis of these. Poor quality in the meaning intended here is not necessarily poor work. It is natural that the ordinary day of a city architect includes plenty of cases where a position must be taken depending on context and specific situation, for example on the basis of a long-since established, but expired, detailed master plan or in terms of a set of construction documents and drawings that is overwhelmingly influenced by private interests yet is, at the same time, of high quality.
Let us draw a conditional boundary between good and poor quality at the level of an ordinary, average set of construction documents and drawings or a detailed master plan. In this case (without laying claim here to producing any sort of scientific truth), it can be said that the frequency of occurrence of the previous four situations is more or less equal. This, in turn, means that by handling the detailed master plan according to Model A, we get a quality or above average result for 25% of the building permit applications, and by handling the detailed master plan according to Model B, we get a quality or above average result for 75% of the building permit applications. This difference is notably large, and thus affects the constructed environment as a whole.

The more alert city architects apply Model B as much as possible in the present legal system as well. In other words, they treat the detailed master plan, first and foremost, as a general spatial solution. Legal justifications for this can be found in the event of good skill in argumentation from among the general provisions in both the law governing administrative procedure and the law of spatial planning, but also in court decisions. Still, in this course of action (considering widespread notions of the legal system), there is often the risk of formal accusations of breaking the law. Since a large proportion of society recognises Model A, this makes intelligent people wary and jobs in the public sector unpopular among architects. And if a municipal official or a lawyer working for private customers who does not even understand the way of thinking contained in works drafted by architects mechanically interprets the connection between the project and the detailed master plan, then the development of our urban space in a negative direction should not be surprising.

Connection Between Property Law Transactions and the Constructed Environment
The world of property law contracts is quite unfamiliar to most architects. Yet the development and continuance of the constructed environment plays an important role in property law contracts signed between the public and private sectors.
If land is originally owned by the public sector, then in addition to property transactions (the sale of land), easements, real encumbrance and ground lease can also play an important role. Easements (personal right of use for the benefit of the city) make it possible to guarantee the continuance of public space on private property. Real encumbrance makes it possible to guarantee the operation of some necessary function on private property in the public interest. A ground lease makes it possible to set preconditions for buildings to be built by the private sector. Reasonable decisions in signing property law contracts are often also the basis for good urban space. Although the effect of property transactions is apparently the most extensive, let us focus this time on a markedly more complicated ground lease.

The concept of ground lease is often regrettably confused with the linguistically similar concept of construction right. Stated in simple terms, ground lease is a term from the sphere of private law that denotes the right of one individual to build a building belonging to himself on land that belongs to another individual. (Construction right is a term of public law that primarily regulates the maximum building volume allowed on a property regardless of ownership. According to Model B described above, the concept of construction right could also be removed altogether from laws in their present wording, since construction right is essentially simply one part of the previously described general spatial solution of the detailed master plan.)

The contract signed between the parties primarily defines the content of the ground lease, and its important point becomes evident primarily in the case of PPP type developments. In order to create a foundation for good cooperation between the public and private sectors, particular care should be taken prior to signing the ground lease contracts, to ensure that the right of representatives of the public sector to have their say concerning the quality of the construction documents and drawings and the extent of public space is as well-protected as possible. This right, recognised by the other party in the contract, must also be pertinently used later as well.

As a city architect, I myself have intervened on several occasions on my own initiative in the content of planned property law transactions, and I believe that this has helped to avoid many problems. It is often the case that, if a mistake is made in the contract that is signed, it is very difficult or even impossible to correct this later as a detailed master plan or a set of construction documents and drawings. Every property law contract that is signed or interpreted in contradiction to the visions of the detailed master plan also means that changes in urban space have gone beyond the architect’s sphere of influence.

Interestingly enough, the biggest and mid-sized flops in our urban space have originated from ground lease contracts in particular, where the land is owned by the public sector and the builder is some private developer. The preconditions for good results should be better than in the case of private development taking place on ordinary private property. Yet, in addition to the Sakala Centre, other central objects can also be pointed out as bad examples associated with a ground lease, such as the Tartu Bus Station or Norde Centrum. Somewhere, a warning light should light up, indicating that a ground lease does not seem capable of functioning as it should. Sometimes the problem is contractual provisions that are too slanted in favour of private interests, and at other times, guarantees for the fulfilment of the contract are insufficient.

In the Sakala case, the contract was nevertheless at a satisfactory level. Some points could have been expressed more clearly, but the contract itself made it possible to debate all the important conditions. Instead, the problem arose from the fact that the former Minister of Culture, as the representative of the public sector, disregarded the rights set up to protect the spatial solution in the contract, while going so far as to even use the rhetoric of the representative of private interests.

Are there more reasons, other than possible corruption, that this happened this way? I believe that there are. The ground lease contract is, traditionally, primarily a financial transaction, between two parties, that society is not used to seeing as a document that can significantly influence the spatial solution. It was easy for the minister to act according to tradition. Public sector contracts do not go through the process of being made public and, for the most part, no advice is sought from architects when writing down rights in the contract or when protecting them.

For this reason, society should espouse the idea that public sector contracts concerning property law should, in every case, be interpreted as an important part of the process of creating the constructed environment.

Double Sieve
As we can see from the previous description of the two connections, the skill of the representative of the public sector in carrying out his role and speaking for the quality of the spatial solution and the public interest becomes decisive in terms of each topic.

The previously described Model B for handling detailed master plans functions properly under one important condition – the result depends on how adequately the person or group of persons that is authorised to assess quality discerns quality, perceives interests, directs the process and makes decisions. This should not be an argument in favour of Model A, because that, in turn, presents the opportunity to hide behind the argument of legal correctness in the case of each substantially incompetent decision, and so we would be right back at the beginning. By accepting Model B, the municipal government could have calmly asked for an alternative expert assessment in the case of Sakala if it had wanted to, which would have stated that the demolition of Sakala is not in any way compatible with the detailed master plan. The Estonian Association of Architects, indeed, drafted one such assessment on its own initiative. But the voice of the lawyers, appropriate to Model A, was still more convincing for the politicians who were the decision makers.

To briefly summarise, the question of the decision maker emerges. After the Sakala saga, many varied voices expressed the position that people in the profession should be the decision makers – an opinion that in this context naturally sounded like the only right option. Yet in building up general principles, the foundations of democratic society, according to which the people make decisions through their elected representatives, can in no way be interfered with. Therefore, we should not descend to extremes. For example, giving too much authority to architects will never take place and it would not necessarily lead to good results.

It would be wise to set the principle that I would call the double sieve as a goal. Decisions associated with the constructed environment should be examined twice. First of all, the decision should be assessed by some kind of assembly of people from the profession, which ideally would guarantee the professionalism of the decision. Thereafter the decision should receive approval from the representatives of the people, who ideally would reject substandard projects approved by professionals when necessary. No system can guarantee 100% quality, but the likelihood of a quality decision would increase significantly.

Directions in which Legislation Should Develop
In summary, I will try to formulate the necessary directions in which legislation should continue to develop. In our current legal system, planning, construction and property law transactions are only connected by very superficial formal connections. Yet the process is a whole entity, the expression of which is actual urban space.
For this reason, I believe that the development of legislation should be considered in a fresh way, and a new law governing the constructed environment should be written encompassing processes as a whole. The most important necessary fundamental directions could be written which would include:

The clear interpretation of the detailed master plan as a general spatial solution, which is the basis for construction documents and drawings as well as for property law transactions, through the substantial consideration of interests.

The adoption of the concept of public space and the interpretation of the principle that public sector transactions concerning property law are a part of the process of creating the constructed environment.

The acceptance of the double sieve principle in all decisions associated with the constructed environment.

Although the quality of the results inevitably depends on the people actually doing the work in the public sector, I venture to claim that the acceptance of these principles and writing them out in legislation would have a significant positive effect on the quality of spatial development and the satisfaction of residents in our cities. The time of attaching excessive importance to the ‘legal correctness’ of individual decisions, in the view of society, is already past, generally speaking. It is high time to notice this in documents and processes concerning the constructed environment as well. Definitive, unambiguous rules should be in effect concerning the decision-making process and the authorisations of people participating in it. At the same time, attempting to directly and strictly regulate spatial solutions through a detailed master plan works against its original objective and creates a misleading impression that the situation is in order. This is perhaps the main thing that the Sakala saga teaches us.